Dalton v. Herbruck Egg Sales Corp. , 164 Mich. App. 543 ( 1987 )

164 Mich. App. 543 (1987) 417 N.W.2d 496

DALTON
v.
HERBRUCK EGG SALES CORPORATION

Docket No. 93710.

Michigan Court of Appeals.

Decided July 31, 1987.

Dunnings & Frawley, P.C. (by John J. Frawley), for plaintiff.

Smith, Haughey, Rice & Roegge (by Jon D. Vander Ploeg), for defendant.

Before: GRIBBS, P.J., and D.F. WALSH and J.F. FOLEY,^[*] JJ.

PER CURIAM.

Plaintiff, David Dalton, appeals from the trial judge's grant of summary disposition against him pursuant to MCR 2.116(C)(10) on his claims that defendant breached either an express or implied employment contract with him and slandered him. We affirm in part and reverse in part.

Plaintiff, a truck driver, delivered eggs to supermarkets for defendant. On September 12, 1983, plaintiff appeared for work and was told that he would be driving truck tractor No. 16. Because of his past experiences of highway breakdowns with No. 16, plaintiff informed an assistant supervisor that he would not drive No. 16, but that instead he would perform a double run the following day when another truck was available. Plaintiff testified that, from his experience, customer supermarkets were not fussy about exactly when eggs were delivered so long as the deliveries were made and the supermarkets remained stocked. When plaintiff returned to work the following day, he was terminated.

Plaintiff filed a six-count complaint, with five of the counts relating to plaintiff's allegation that defendant had breached either an express or implied employment contract (Counts I, II, IV, V and VI). In addition, plaintiff claimed he was slandered by defendant's statements to a prospective employer who contacted defendant concerning plaintiff's employment history (Count III). The trial judge granted defendant's motion for summary disposition because of a disclaimer in the personnel handbook which stated that the handbook was not an employment contract and plaintiff's admission that he had read the disclaimer and understood it. The trial judge also dismissed plaintiff's slander claim, finding that the malice in defendant's statements was not sufficient to overcome defendant's qualified privilege.

On appeal, in support of his employment contract claim, plaintiff relies on the personnel handbook which provides for a progressive form of discipline leading up to termination. Under the handbook, plaintiff's unauthorized absence from work would be categorized as a "Level 1" disciplinary action. The handbook provides for a four-step disciplinary process for Level 1 offenses with step 1 being a verbal warning and step 2 a written warning. Since plaintiff had never been previously disciplined, had the handbook been strictly followed, he would have received only a verbal warning for his unauthorized absence. However, one provision of the handbook provides that "[b]oth the employee and Herbrucks have the right to terminate the employment arrangement at any time deemed necessary by either party without specific cause or reason." Another provision provides that "[t]his manual does not constitute a contract. The company reserves the right to review policies and to change the benefits and procedures contained herein at any time."

A copy of the employee handbook provided for our review on appeal contained an acknowledgment form to be signed by the employee, but there is no evidence that plaintiff signed such an acknowledgment. Plaintiff testified that he read the policy manual and felt the provisions meant the employer could change the rules at any time. There is no evidence that the employer changed any of the policies in the handbook prior to the discharge of plaintiff.

The seminal case in Michigan on wrongful discharge is Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich. 579; 292 NW2d 880 (1980). One of the conclusions reached by our Supreme Court in Toussaint was that an expectation that an employee would not be discharged except for just cause may become legally enforceable as a result of an employee's legitimate expectations grounded in an employer's policy statements. Id., p 598. The Court also stated:

Employers can make known to their employees that personnel policies are subject to unilateral changes by the employer. Employees would then have no legitimate expectation that any particular policy will continue to remain in force. Employees could, however, legitimately expect that policies in force at any given time will be uniformly applied to all. If there is in effect a policy to dismiss for cause only, the employer may not depart from that policy at whim simply because he was under no obligation to institute the policy in the first place. Having announced the policy, presumably with a view to obtaining the benefit of improved employee attitudes and behavior and improved quality of the work force, the employer may not treat its promise as illusory. [Id., p 619.]

We believe that the trial judge erred in dismissing plaintiff's action because a jury question existed concerning whether there was an implied employment contract between the parties. The employee handbook, while providing that its provisions were not a contract and that an employee could be terminated at will, also set forth provisions from which plaintiff could have concluded that he would not be reprimanded for his conduct or, at the very most, would receive only a verbal warning. The tenor of the entire handbook is that all employees will be fairly and justly treated in accordance with the procedures set forth in the handbook. Where a policy manual provides both a "for cause" termination policy and a terminable at will policy, the question whether an employment contract with a just cause termination policy has been formed is a question of fact to be resolved by the jury. Schipani v Ford Motor Co, 102 Mich. App. 606; 302 NW2d 307 (1981). Consequently, the trial judge erred in dismissing Count IV of plaintiff's complaint, alleging that defendant breached an implied contract founded on defendant's personnel handbook, and Count II, seeking reinstatement. Summary disposition was properly granted as to Count I alleging violation of an express employment contract, Toussaint, supra, and Counts V and VI alleging wilful violation of a contract and the intentional infliction of mental distress. Valentine v General American Credit, Inc, 420 Mich. 256; 362 NW2d 628 (1985).

Next, addressing plaintiff's slander claim, we find that the trial judge properly granted summary disposition.

Plaintiff's complaint contained a general allegation that defendant had told a prospective employer that plaintiff was unreliable. In his deposition, plaintiff testified that a "Brenner" or "Brunner" at Columbia Trucking informed him that Herbrucks stated that plaintiff was not very reliable. Plaintiff appears to concede that the communication to Columbia Trucking was conditionally privileged. Wynn v Cole, 91 Mich. App. 517; 284 NW2d 144 (1979). We agree. Therefore, in order to recover, plaintiff had the burden of proving that defendant's statement was false and made with malice or reckless disregard of the truth. Goldman v Wayne State University Bd of Governors, 151 Mich. App. 289, 292; 390 NW2d 672 (1986). In general, allegations of malice will not suffice to establish a genuine issue of material fact. Regualos v Community Hospital, 140 Mich. App. 455, 462-463; 364 NW2d 723 (1985).

We agree that the plaintiff failed to supply the trial judge with any fact from which the existence of malice could be inferred. Plaintiff's allegations that defendant told persons that plaintiff was unreliable did not meet this requirement. Summary disposition pursuant to MCR 2.116(C)(10) was proper.

Affirmed in part and reversed in part. We do not retain jurisdiction.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.